Shelter’s rules stopping couples from sleep together unconstitutional

01 December 2017 - 14:57 By Ernest Mabuza
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Judge court gavel
Judge court gavel
Image: Gallo Images/iStockphoto

The Constitutional Court on Friday held that the rules of the temporary shelter provided by the City of Johannesburg infringed on the residents’ rights to dignity‚ freedom and security of the person and privacy.

The shelter’s residents had been evicted from a dilapidated private building.

The shelter not only did not allow spouses to sleep together but that residents had to leave in the morning and return before lockdown every night. The court said the rules were not constitutionally valid and must be struck down.

The case has its beginning in 2007‚ when the owners of a building in Saratoga Avenue‚ near Doornfontein in Johannesburg‚ applied for the eviction of 86 people.

The Constitutional Court in 2012 ordered the eviction of the remaining 33 residents‚ and that the residents be provided with temporary accommodation as near as possible to where they had been evicted from.

The city provided the residents with accommodation at the shelter. But the residents complained about the constitutionality of the rules of the shelter.

While the high court in Johannesburg agreed that the rules were unconstitutional in 2015‚ the Supreme Court of Appeal (SCA) disagreed with the decision in May last year.

In its 2016 judgment‚ the SCA said there had‚ in fact‚ been only one married couple among the remaining 11 occupiers.

They were married in terms of customary law. They were allocated a room designed for occupation by four people.

The SCA also found that the rules imposed by the shelter were not unreasonable.

The SCA said the limitation on husbands and wives and permanent life partners sleeping together in the strictly temporary emergency accommodation provided was‚ in the single relevant instance‚ relaxed.

“In any event‚ husbands and wives and permanent life partners do not have the right‚ always and everywhere‚ to sleep together‚” Judge of Appeal Nigel Willis said last year.

However‚ the Constitional Court set aside the SCA judgment.

In a majority judgment‚ Justice Nonkosi Mhlantla said she was not persuaded by the City’s argument that because the accommodation was temporary the evictees were not entitled to the full protection of the other fundamental rights in the Constitution.

“The argument‚ reiterated several times by the City‚ that the shelter does not constitute a ‘home’‚ and therefore the applicants had diminished expectations with respect to dignity‚ freedom and security of the person‚ and privacy is without merit‚” Mhlantla said.

She said the Constitution conferred the rights to human dignity‚ freedom and security of the person and privacy on everyone‚ regardless of where they were at any given time.

“The lockout rule limits the right to dignity because it is cruel‚ condescending and degrading. It forces the applicants out onto the streets during the day with no place whatsoever to call their own and to rest. As a result‚ people seek refuge on the street while they wait for the shelter to re-open‚” Mhlantla said.

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